Excerpt: - salil kumar datta, j.1. this is an appeal by the plaintiff in a suit tor partition. the suit land is comprised in plot no. 3004 khatian no. 356 of mouza kashigram. there is no dispute that the plaintiff is the owner of -/8/- as share in the suit property purchased from defendants nos. 2-3 out of their 2/3rd share the defendant no 1 inherited his 1/3rd share in the property and purchased the remaining 1/6th share from the defendants nos 2 and 3 thereby acquiring 1/2 share of the property. the suit land measured 5 decimals and is recorded as a bas-toc with one ghar. the plaintiff instituted a suit for partition and in that suit the defendant no 1 filed an application under section 4 of the partition act for pre-emption of the plaintiff's share alleging that the disputed property was the.....

Judgment:

Salil Kumar Datta, J.

1. This is an appeal by the plaintiff in a suit tor partition. The suit land is comprised in plot No. 3004 Khatian No. 356 of mouza Kashigram. There is no dispute that the plaintiff is the owner of -/8/- as share in the suit property purchased from defendants Nos. 2-3 out of their 2/3rd share The defendant No 1 inherited his 1/3rd share in the property and purchased the remaining 1/6th share from the defendants Nos 2 and 3 thereby acquiring 1/2 share of the property. The suit land measured 5 decimals and is recorded as a Bas-toc with one ghar. The plaintiff instituted a suit for partition and in that suit the defendant No 1 filed an application under Section 4 of the Partition Act for pre-emption of the plaintiff's share alleging that the disputed property was the dwelling house of the undivided family of the defendants contemplated in the said section. The plaintiff opposed the said prayer contending that the co-sharers never possessed the disputed property as the dwelling house and they had no intention of using the same as the dwelling house.

2. The trial Court on evidence accepted the plaintiff's contention and rejected the application filed under Section 4 by defendant No. 1 and decreed the suit in a preliminary form directing the defendant No. 1 to effect partition by allotting the northern half to the defendant No. 1 himself and southern half to the plaintiff, and in default, a Pleader Commissioner was to be appointed for partition by metes and bounds as indicated above.

3. There was an appeal by the defendant No. 1 and it was held by the appeal Court that in both the entries of the two settlement records there was mention of a structure on, the suit land. According to defendant No. 1 structure was demolished in 1967 D. S. and a new structure was being raised by defendant No. 1. According to the plaintiff the old structure fell down long time ago and the suit plot ceased to be a dwelling house and accordingly the disputed property lost the character of a dwelling house. The appellate Court accepted the contention of the defendant No. 1 and the appeal was accordingly allowed and the defendant No. 1's application under Section 4 of the Partition Act was allowed after setting aside the judgment of the learned Munsif. The present second appeal has been preferred against the aforesaid decision of the lower appellate Court.

4. Mr. Panchanan Samadder learned Advocate appearing for the appellant has contended that the Court of appeal below erred in holding that there was a dwelling house on the suit plot when evidence was that there was a structure and that structure fell down long ago. Further Exhibit A the defendant No. 1's kobala dated the 10th May, 1962 described the land in suit as patit bhiti and it was further recited therein that the sale was being made as it fetched no income. Accordingly the application under Section 4 should have been rejected.

5. Mr. Saktinath Mukherjee learned Advocate appearing for the respondents has contended on the other hand that the record of rights indicated that there was a ghar in the suit land and though the same fell down a new ghar was being constructed thereon. He relied on some decisions in which it has been held that the ancestral dwelling house does not lose its character of dwelling house simply because at some point of time there remained no structure on the suit land provided the parties intended to use the same as such.

6. We shall consider the decisions which have been cited by the learned Advocates at the Bar. In the case of Nil Kamal v. Kamakshya reported in AIR 1928 Cal 539, it was observed that the mere fact that the huts were blown down does not make the dwelling house any the less a dwelling house so long as the members have not abandoned it or given up the idea of using it as such. In Bhagirath v. Afaq Rasul reported in : AIR1952All207 it was held that the test is whether the family has abandoned all idea of dwelling in the house and not the state in which the house is. There may be good reasons for which reconstruction of the house may not be possible within a reasonable time. In the case of Bikal Swain v. Iswar Swain reported in : AIR1959Ori173 it was held that a dwelling bouse referred to in Section 4 must be a dwelling house in existence and when there is no dwelling bouse in existence at the time of transfer Section 4 of the Partition Act has no application. In the case of Satyendu Kundu v. Amur Nath Ghosh reponed in : AIR1964Cal52 it has been held that Section 4 is to be interpreted liberally. Further in spite of the fact that a major portion of the house has been let out to tenant and one has a house of his own if there was the evidence that he did not stop using one room of the house, nor had be the intention of doing so, it will not take the case out of the operation of the said Section 4 of the Act. In the case of Manick Lal Singh v. Gouri San-kar Shah reported in : AIR1968Cal245 it was held that it has to be first found whether the house in question was used by the members of the family for residential purposes. In the case of Sunil Kumar v. Provash reported in : AIR1969Cal88 . it was held again that the provisions of Section 4 are to be liberally construed and to be construed strictly against the strangers purchasers. In that case the disputed land at the material time was vacant and it was found to be an ancestral dwelling house. The land underneath was requisitioned by military in 1942 and it remained in their possession till 1950. The structures were dilapidated and were demolished by the military. In that state the properly was de-requisitioned. This Court treated the vacant land as a dwelling house in the circumstances.

7. The ratio of the cases cited above appears to be that Section 4 is to be liberally construed in favour of the undivided family who had the ownership of the property between its members. There must be an ancestral dwelling house in existence on the suit land at some point of time though the dwelling house may not be in existence at the material time and the land underneath may remain vacant for the time being. But it must be established that the members of the family have not abandoned the property for their use as the dwelling house and also have an intention of building a dwelling house thereon. The extreme view put forward by the Orissa High Court was not accepted by the decisions of this Court as we have noted above. To this it also has to be taken in consideration that stray use of the property for short residence for specific purpose will not make such property a dwelling house as contemplated in Section 4. A dwelling house connotes to some extent a permanent abode of the undivided family where such family resides or intends to reside generally and not a house for stray short or temporary residence for specified purpose.

8. Applying the above principles to the facts and circumstances of this case it would appear that the suit plot belonged to defendant No. 1's father's mother's father. A share in the property was acquired by the defendant No. 1 and he was also an original en-sharer by inheritance. It also appears from the evidence that the co-sharers used the alleged dwelling house in the village for collection of paddy and for attending Kali Puja held in the adjoining plot. The defen-dants undisputedly come from a different dis-trict of Birbhum. The co-sharers were se-parate in mess and when they came to the village they used to stay in the suit property there. On this evidence it is not possible for me to hold that the property represented a dwelling house as contemplated under Section 4 of the Act. It is obvious from the deposition of defendant No. 1 that there was no question of residing at the place except for a few days on a few occasions, namely on days when they came to collect paddy and to attend celebration of Kalipuja held in an adjoining land. For such stray residence it cannot be said that the disputed property formed a dwelling house under Section 4 belonging to defendant No. 1, as chimed.

9. It will be of some interest to refer to the section itself. Section 4 provides:

'4. (1) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not member of such family and such transferee sues for partition, the Court shall if any member of the family being a share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder, and may give all necessary and proper directions in that behalf.'

In the case of Boto Krishna Ghosh v. Akhoy Kumar Ghose reported in : AIR1950Cal111 it was held, as held in Nilkamal's case that 'undivided family means simply a family not divided qua the dwelling house. In other words a family which owns a dvvril-ling house and has not divided it. It does not mean Hindu Joint Family or even joint family. The members need not be joint in mess. The essence of the matter is that the house itself should be undivided amongst the members of the family who are its owners'. It would appear from the facts of this case that the suit property at the time of the institution of the suit did not belong to any undivided family but it belonged to a person the defendant No. 1. In my opinion, the provision of Section 4 applies to a dwelling house owned by an undivided family with members who are its owners in some share. In the facts of this case, the suit property is owned solely by the defendant No. 1 and not by an undivided family. For this reason also the application under Section 4 is not maintainable in law.

10. In the view I have taken this appeal succeeds. The decree passed by the appellate Court allowing the application under Section 4 of the Act is set aside and the judgment and decree of the trial Court is restored and affirmed.